Lim v Minister for Immigration & Anor
[2018] FCCA 496
•1 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIM v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 496 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal to reinstate a review application that had earlier been dismissed on account of the failure of the applicant to appear – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379A, 379G |
| Cases cited: AZAFB v Minister for Immigration [2015] FCA 1383 Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280 Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 |
| Applicant: | LINA LIM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1818 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
INTERLOUCTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1818 of 2017
| LINA LIM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Ms Lim, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 May 2017. The Tribunal confirmed an earlier decision to dismiss the review application before it on account of the non-attendance of Ms Lim. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 22 February 2018.
Ms Lim seeks review of a decision of the Tribunal, made on 16 May 2017 (confirmation decision), confirming an earlier decision of the Tribunal made on 1 May 2017 to dismiss Ms Lim’s application for review of a decision of the delegate (dismissal decision) pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) by reason of the failure of Ms Lim to attend the scheduled hearing before the Tribunal.
Ms Lim, a citizen of Indonesia, arrived in Australia on 18 August 2011 as the holder of a student visa. She subsequently held a number of student visas and associated bridging visas.[1] On 10 March 2016, Ms Lim lodged an application for a further student (Class TU) visa (visa). On 3 June 2016, a delegate of the Minister refused to grant the visa on the basis that Ms Lim was not a genuine temporary entrant.[2]
[1] Court Book (CB) 40
[2] CB 36-51
On 21 June 2016, Ms Lim applied to the Tribunal for review of the delegate’s decision.[3] Under the heading “Representative details” on the application form, Ms Lim provided the details of her migration agent, including the email address “[email protected]”.
[3] CB 52-53
By email transmitted on 11 April 2017 to Ms Lim’s representative at the email address nominated on the review application form, the Tribunal invited Ms Lim to attend a hearing scheduled for 1 May 2017 at 9:00am. The invitation notified Ms Lim that if she did not attend the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable her to appear before it, or might dismiss her application for review without any further consideration of the application or the information before it. The invitation further notified Ms Lim that a dismissed case could be reinstated if the Tribunal considered it appropriate to do so and an application for reinstatement was made within 14 days of receipt of the notice of dismissal. It added that if the Tribunal were to confirm the dismissal, the decision under review would be taken to be affirmed.[4]
[4] CB 61
On 29 April 2017, Ms Lim’s representative sent an email to the Tribunal stating that he had been unable to get in touch with Ms Lim in the previous two weeks.[5]
[5] CB 68
Neither Ms Lim nor her representative attended the scheduled hearing on 1 May 2017. On the same day at 11:05am, the Tribunal issued the dismissal decision. This statement was transmitted by email to Ms Lim’s representative, to the email address nominated on the review application form.[6] In a letter accompanying the dismissal decision, the Tribunal notified Ms Lim that she could apply for reinstatement of the application by 15 May 2017, and that such an application should set out why she failed to appear at the hearing and provide any other information she wanted the Tribunal to take into consideration when deciding whether to reinstate the application.[7]
[6] CB 58-59
[7] CB 75
On 14 May 2017, by email sent by her representative, Ms Lim sought reinstatement of her review application. Ms Lim explained that she had moved address in January of that year, had changed her mobile number, and had forgotten to notify her migration agent.[8]
[8] CB 78
On 16 May 2017, the Tribunal made the confirmation decision.
Tribunal's proceedings
The Tribunal set out the procedural history of the matter before it leading to the application for reinstatement, and noted that Ms Lim’s representative had advised on 14 May 2017 that he had finally gotten in contact with her.[9] The Tribunal considered Ms Lim’s claims in support of her reinstatement request, namely, that she had moved address and failed to inform her migration agent of this change and that she had changed her mobile number.[10] The Tribunal also considered a utility bill provided by Ms Lim with her new address (in her husband’s name) and a copy of her marriage certificate.
[9] CB 85 at [1]-[4]
[10] CB 85 at [4]
The Tribunal was satisfied that it had sent the hearing invitation by email to the email address provided by Ms Lim, being her representative’s email, and that the invitation notified Ms Lim that if she did not attend the hearing her application might be dismissed.[11]
[11] CB 85 at [6]
The Tribunal further considered that there was no evidence that Ms Lim’s email address, which her representative had referred to in his email of 29 April 2017, had changed. The Tribunal noted that Ms Lim’s representative had advised on 29 April 2017 that Ms Lim’s email address was [email protected],[12] which matched the email address on the delegate’s decision record. The Tribunal considered it reasonable that Ms Lim would keep her representative updated of her contact details, that she would have had access to her emails, and that her representative would contact her on her email address.[13] The Tribunal noted that there was no independent evidence that Ms Lim’s mobile number had changed.[14] On the evidence before it, the Tribunal found that it had taken all reasonable steps to notify Ms Lim of her opportunity to appear before it at a hearing.[15]
[12] The Tribunal’s decision refers to lina_lim@y&mail.com, which appears to be a typographical error. The email address referred to by the applicant’s representative, and which was recorded in the notification of the delegate’s decision record, was [email protected]
[13] CB 85 at [7]
[14] CB 86 at [7]
[15] CB 86 at [8]
The Tribunal did not accept that Ms Lim had provided a reasonable excuse for her non-attendance, as it formed the view that she was contactable by email.[16]
[16] CB 86 at [8]
The Tribunal was not satisfied that reinstatement was appropriate and confirmed the decision to dismiss the application.[17]
[17] CB 86 at [9]-[11]
The present proceedings
These proceedings began with a show cause application lodged on 9 June 2017. Ms Lim continues to rely upon that application. There are three grounds in it:
1. The Tribunal have denied me natural justice and procedural fairness by not giving me a hearing.
2. The application for review was lodged in June 2016 and for almost a year I hear nothing from the Tribunal and yet I was only given 19 days’ notice before a scheduled hearing where in the same period I moved address and did not respond until the second letter from the Tribunal asking me to make an application for a reinstatement of the hearing which the Tribunal refused.
3. I feel the Tribunal decision to refuse to give me a hearing is unfair.
In addition to the court book filed on 31 July 2017, I have before me as evidence a short affidavit by Ms Lim filed with her show cause application.
I declined to receive a second affidavit by Ms Lim made on 19 February 2018. That affidavit makes factual assertions relating to the circumstances in which Ms Lim changed address. It also attaches several documents. The fact that Ms Lim changed address is not in dispute. What was of concern to the Tribunal was that Ms Lim did not inform either her agent or the Tribunal of that change of address. To the extent that the documents and factual assertions were known to the Tribunal, the affidavit adds nothing new. To the extent that it makes new factual assertions, these were not matters that the Tribunal could take into account.
After explaining to Ms Lim what I saw as the issues, I invited oral submissions from her. She did not wish to make any oral submissions either in chief or in reply. Her written submissions provide some background and recite the grounds and traverse what Ms Lim sees as relevant legislation. The submissions do not, however, advance to any significant extent the basic assertions made in her application.
Those assertions are that the Tribunal acted unfairly in circumstances where Ms Lim had lodged her review application in June 2016 and then heard nothing until she was told that her application had been dismissed for non-attendance. Over that period, it seems that Ms Lim married and moved house. Her mistake, however, was not to inform her agent or the Tribunal of that move. The agent has the same family name as Ms Lim, but she told me from the bar table that they are not related.
The court book discloses that on 29 April 2017, that is, two days before the scheduled hearing, the agent informed the Tribunal by email that he had been unable to contact Ms Lim over a period of two weeks.[18] It is reasonable to assume that those attempts by the agent to contact Ms Lim were stimulated by the Tribunal’s hearing invitation. The agent provided the Tribunal with the last known street address and email address for Ms Lim.
[18] CB 68
The Tribunal dealt with the issues as it saw them in regard to the email address at [7] of its reasons.[19] There was a question in my mind whether, on being informed by the agent that he had been unable to contact Ms Lim and having provided an email address for her, which was the same email address as on the delegate’s decision record, the Tribunal should have attempted to inform Ms Lim of the hearing directly to that email address.
[19] CB 85-86
There are two potential answers to that proposition. The first is, consistently with the Tribunal’s reasoning at [7], that it was the agent’s responsibility to communicate with his client, and it would be logical to assume that the agent would have sent the hearing invitation to Ms Lim by email to her email address. Ms Lim told me from the bar table today that she thinks she might have received the hearing invitation on her email, but she is not sure if or when she received it.
The second answer to the proposition that the Tribunal should have attempted to communicate with Ms Lim on the nominated email address is that s.379G(1) of the Migration Act required the Tribunal in the circumstances of this case, where an authorised recipient had been appointed, to communicate with the authorised recipient rather than Ms Lim. At a minimum, that section places a legal obligation on the Tribunal to communicate with the authorised recipient instead of the applicant. It does not necessarily follow that there is a statutory prohibition on the Tribunal communicating with an applicant as well as the authorised recipient, but there can be no legal error by the Tribunal in complying with its obligation under the section.
In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced.
Noting that the application to show cause only seeks review of the Tribunal’s confirmation decision, the Minister understands Grounds 1 and 3 to contend that the Tribunal denied Ms Lim procedural fairness in exercising its discretion to confirm the dismissal decision. I agree.
The Tribunal invited Ms Lim to attend a hearing on 11 April 2017 in accordance with s.360 of the Migration Act.[20] The invitation set out the date, time and place of the hearing,[21] provided sufficient notice of the hearing,[22] and contained a statement as to the effect of s.362B of the Migration Act.[23] Further, the invitation was provided to Ms Lim by one of the prescribed methods in s.379A(5) of the Migration Act,[24] namely to the email address nominated by Ms Lim in her application for review. This was the last email address provided by Ms Lim to the Tribunal. The Tribunal was required to send the invitation to Ms Lim’s representative, as her authorised recipient, pursuant to s.379G(1) of the Migration Act and it was taken to have been given to Ms Lim under s.379G(2) of the Migration Act. Accordingly, Ms Lim was taken to have received the invitation at the end of the day on which it was transmitted to her representative (that is, 11 April 2017).
[20] CB 60
[21] as required by s.360A(1) of the Migration Act
[22] that is, 14 days as required by s.360A(4) and regulation 4.21(4) of the Migration Regulations 1994 (Cth) (Regulations)
[23] as required by s.360A(5) of the Migration Act
[24] as required by s.360A(2) of the Migration Act
On 1 May 2017, Ms Lim failed to attend the scheduled hearing and the Tribunal dismissed the application by written statement under s.362B(1C)(b) of the Migration Act. The written statement complied with the requirements in s.362C of the Migration Act. It set out the decision and the reasons for the decision and recorded the day and time the statement was made; an information sheet accompanying the decision described the effect of ss.362B(1B)-(1F) of the Migration Act; and it was transmitted to the email address of Ms Lim’s representative. In addition, a letter accompanying the written notice advised Ms Lim that should she apply for reinstatement, she should provide reasons for her failure to appear at the hearing along with any other information that she wanted the Tribunal to consider.[25] Ms Lim provided a statement and evidence in support of her reinstatement application, which the Tribunal considered. In particular, there was no failure by the Tribunal to consider the claims and evidence put to it in support of the reinstatement application. The Tribunal complied with its notification and other procedural fairness obligations under the Migration Act.
[25] CB 75
To the extent that Grounds 1 and 3 contend that Ms Lim was denied procedural fairness in that she was not invited to attend a hearing in relation to the reinstatement application, there is no requirement in the Migration Act for an applicant to be invited to a hearing before a decision is made under s.362B(1A)(b). Accordingly, and in circumstances where Ms Lim was invited to provide reasons for her non-appearance and any other information in support of her reinstatement application, there is no proper basis upon which the Tribunal’s decision could be said to be procedurally unfair.
Ground 2 is a recital of the history of Ms Lim’s review before the Tribunal. If Ground 2 is understood to take issue with the confirmation decision on the basis that Ms Lim was only given 19 days notice of the hearing scheduled for 1 May 2017 following a year-long wait, this does not reveal any jurisdictional error.
The Tribunal complied with its statutory notification obligations by providing the hearing invitation to Ms Lim, through her authorised representative by email, at least 14 days prior the scheduled hearing.[26] Further, during the period between the acknowledgement of the application and the hearing invitation, the Tribunal’s review remained on foot; Ms Lim was represented by a migration agent for the purposes of the review and the migration agent received the hearing invitation, which was confirmed by his email to the Tribunal on 29 April 2017. To the extent that Ms Lim contends that the Tribunal should have considered the history of delay when making the confirmation decision, I accept that no such obligation arose, especially in circumstances where Ms Lim raised no such argument before the Tribunal.
[26] section 360A(4) of the Migration Act and regulation 4.21(4) of the Regulations
To the extent that Ms Lim might be understood by Ground 2 to contend that the Tribunal’s decision not to reinstate her proceeding was legally unreasonable, that argument cannot succeed.
An evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful outcomes must be made having regard to the terms, scope and policy of the statutory source of the power.[27] When faced with an allegation that a decision is legally unreasonable, the Court is not asked to substitute its view of the merits of the exercise of the discretion; rather, it exercises a supervisory function in determining whether the decision conforms to the standard of reasonableness.[28]
[27] Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
[28] AZAFB v Minister for Immigration [2015] FCA 1383 at [21] per North ACJ
In the present case, the Tribunal’s confirmation decision (which is the only decision in respect of which the applicant seeks review) could not be said to be unreasonable, having regard to the terms and scope of the Tribunal’s statutory source of power. The Tribunal had regard to Ms Lim’s explanation for her failure to attend the Tribunal, which centred around her failure to notify her agent of her change in contact details. Significantly, the Tribunal noted that Ms Lim had not changed her email address, and accordingly, was not satisfied that she had provided a satisfactory explanation for her non-attendance. In those circumstances, the Tribunal declined to exercise its discretion to reinstate the application.
The Tribunal’s decision not to exercise its discretion could not be said to be arbitrary, capricious, without common sense or plainly unjust;[29] while “reasonable minds may reach different conclusions about the correct and preferable decision”, the Tribunal’s decision was within the “area of decisional freedom”.[30]
[29] see Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (Li); Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [44]
[30] Li at [28]
I conclude that Ms Lim is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Ms Lim asked for the costs to be reduced on account of her financial circumstances, but I am satisfied that the scale amount reflects a fair estimate for party/party costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 March 2018
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